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July 13, 1954



Herman Bloom, Philadelphia, for appellant.

Martin Vinikoor, Samuel Dash, Asst. Dist, Attys., Michael von Moschzisker, First Asst. Dist, Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

Before Ross, Acting P. J., and Gunther, Wright, Woodside and Ervin, JJ.

Author: Ervin

[ 175 Pa. Super. Page 598]

ERVIN, Judge.

This is an appeal from the order of the lower court dismissing a petition for a writ of habeas corpus after hearing. John R. Kitchen, the appellant, was convicted on May 7, 1943, before the late Judge Harry S. McDevitt and a jury on charges of robbery, rape, etc. No motions in arrest of judgment or for a new trial were filed. Appellant was sentenced to imprisonment in the Eastern State Penitentiary for a period of not less than seventeen and one-half nor more than thirty-five years. He is presently confined in the penitentiary, having served eleven years of his term. Kitchen, with three other men, Johnson, Terry and Piett, was convicted of a brutal assault on Samuel Watkins and his wife, Catherine. Watkins was beaten, wounded and robbed. Mrs. Watkins was beaten, rendered unconscious, carried to an abandoned garage and there raped. The prosecutors identified Johnson

[ 175 Pa. Super. Page 599]

    and Pitett as men who had attacked them. They could not identify Kitchen or Terry. Kitchen and Terry were implicated by Johnson after his arrest. All four signed statements taken by police officers in question and answer form, in which each defendant admitted taking part in the robbery and each admitted having raped Mrs. Watkins. At the trial each defendant admitted having signed the confession but denied any participation in or knowledge of the affair. Each repudiated his confession entirely. Johnson, Piett and Terry testified that they were beaten by the police officers and signed the confession involuntarily to avoid further beating. Kitchen testified he signed the confession because, 'Oh, all the rest of them signed it, so I signed it too.' On May 16, 1953 Kitchen, by his counsel, Herman Bloom, Esq., filed a petition for a writ of habeas corpus alleging that the appellant 'is being unlawfully detained at the Eastern State Penitentiary by reason of the fact that at the time of trial he was denied due process of law as provided for by the Fourteenth Amendment of the Constitution of the United States, in that there was a coerced and involuntary confession, and that the confession was later denied by the petitioner and the denial was never rebutted by the Commonwealth.' Several hearings were held by President Judge MacNeille. Appellant presented testimony in support of the allegations of his petition. The Commonwealth presented evidence to rebut the appellant's allegations. The appellant, who testified at his trial that he had signed the confession because the others signed it, at the habeas corpus hearing stated that he saw and heard Terry and Piett being beaten and then when one of the police officers slapped him and ordered him to sign, he was frightened and signed the confession to avoid receiving the same punishment he saw given the others. He identified one

[ 175 Pa. Super. Page 600]

Anderson as the police officer who had beaten Terry and Piett but could not remember the name of the officer who he said struck him and ordered him to sign the confession. According to the testimony given at the trial the police officers present at the time the statements were made and signed by the defendants were Detectives Kesel and McCullough, Detective Sergeant Plier and Lieutenant Greenhalgh. Plier testified at the trial and read the confession to the jury. He was not called to testify at the hearing on the writ of habeas corpus. McCullough, Greenhalgh and Kesel were called and testified at the hearing, as did also Detective Anderson. McCullough stated that he remembered the case, that he was present when the statements were made voluntarily, without threats, promises, force or coercion. Lieutenant Greenhalgh testified he too was present when the statements were taken and that no force or threats of force induced them but that they were made voluntarily. Detective Kesel testified that he remembered the case but had taken no part in the questioning of the defendants and was not present when the statements were made; he did, however, see the men being questioned by other officers, and saw none of them struck or threatened. Detective Anderson, who was identified by the appellant as the officer who had beaten Terry and Piett, testified that he had had no connection with the case at all and had nothing to do with the defendants or their confessions. He stated that he happened to be present in the court room on the day of their trial on other business, and that when Terry testified that he had been beaten by a colored detective, the trial judge asked Anderson to stand and asked Terry whether that was the man who had beaten him, and Terry, he thinks, said yes. Anderson testified that he took no part in the case and specifically denied striking Terry or any of the defendants.

[ 175 Pa. Super. Page 601]

The transcript of the testimony taken at the trial shows that Terry did then indicate that Anderson was the officer who had struck him.

President Judge MacNeille, after giving the case careful consideration, stated in his opinion: 'To the mind of the court the testimony on this point is clear and convincing that no force or threats were used to induce the relator's confession, and there is no basis in fact to support the contention that his confession was coerced and involuntary.' An examination of ...

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